Strategic Litigation

Strategic Litigation

Constitutional Challenge of Employer-tying Measures

See 30-min presentation on YouTube

In Canada, restrictive measures apply to individuals employed within private households and farms under foreign worker status, explicitly or indirectly negating their right to freely change employers. If the relationship with a specific employer-sponsor ends, their right to legally earn a living – and sometimes also to stay in the country – is immediately revoked.

Employer-tied household and farm workers are, therefore, extremely reluctant to do anything that might jeopardize their employment relationship. Employer-tying measures thus restrict workers’ capacity to resign, creating a radical shift in the balance of power in favor of the employer and, more generally, (1) a major obstacle to the exercise of rights and access to justice/protection of Rule of Law in Canada.

More specifically, tied household and farm workers systematically experience (2) a restriction of their physical liberty and (3) a restriction of their capacity to make fundamental choices such as choosing where and with whom to reside, and infringements on their (4) physical and (5) psychological integrity: health and safety standards violations, psychological/physical/sexual harassment and assault, higher risks of debt bondage and human trafficking.

Facing a state sanction if they are fired or resign (the immediate revocation of their right to work in the country), employer-tied household and farm workers are de facto placed in a legal condition of forced labour. Canadian foreign worker admission programs that integrate an employer-tying measure result in the consolidation of unfree labour supply and employment regimes – characterized by a reduced applicability of labour protections and more generally of the rule of law.

The … worker … is prohibited from working for another employer (…). … [H]uman dignity is not satisfied. … The right to liberty, for its part, is violated. … [T]he ‘change of employer procedure’ … cannot negate this violation (…). … [T]he restrictive arrangement has created a modern form of slavery.

Supreme Court of Israel – 2006

The systemic vulnerability of employer-tied workers to right violations has been acknowledged abroad by International organizations and within Canada by tribunals, human rights and labour commissions, and parliamentary committees. Despite evidence of their devastating impact on workers’ rights, the Canadian government refuses to end employer-tying measures and replace, in particular, restrictive work authorizations with open ones.

In this context, the RHFW is working to challenge the legal validity of employer-tying measures – on the basis that they restrict workers’ constitutional rights to life, liberty, security and access to justice, but cannot be justified in a free and democratic society.

In December 2021, a RHFW’s request for initial funding was granted by the Canadian Court Challenge Program and, since then, the association has been working to initiate proceedings, while securing in parallel the additional financial resources necessary for the success of our action.

 

This strategic litigation case is a highly significant one, both historically and globally. Canada and the world’s development is increasingly associated with international labour (im)migration. With the abolition of such archaic measures as household and farm – and more generally foreign – worker employer-tying, the success of this project will minimise future large-scale state violations of the fondamental rights of (im)migrants and families, as well as future unfree worker underclasses within our communities and societies.

For more information, see the 30-min presentation below, or contact us at info@dtmf-rhfw.org.

Association for the Rights of Household and Farm Workers (DTMF-RHFW)

1340 St Joseph Blvd E,
Montréal, Québec
H2J 1M3

info@dtmf-rhfw.org
514-379-1262